Opinion
RE-18-226
02-14-2019
SUSAN COLUCCI, Plaintiff v. STEPHEN COLUCCI, TRILLIUM PLACE BUILDERS, LLC, and TRILLIUM BUILDERS, INC. Defendants
ORDER ON PLAINTIFF'S MOTION FOR RECONSIDERATION AND DEFENDANTS' MOTION TO STRIKE
Nancy Mills, Justice
Before the court are plaintiff Susan Colucci's motion for reconsideration of the court's order granting defendants' motion to dismiss and defendant's motion to strike. For the following reasons, plaintiffs motion is denied and the court will not consider plaintiffs affidavit and attachments filed on January 28, 2019.
I. Procedural Background
Plaintiff filed a motion for reconsideration on January 2, 2019. MR. Civ. P. 7(b)(5). Defendants filed an opposition to the motion on January 22, 2019. Plaintiff did not file a reply to defendants' opposition. Instead, plaintiff filed "plaintiffs affidavit in support of her objection to motion to dismiss, plaintiffs motion to amend complaint and offer of proof and preservation of the record" on January 28, 2019. Plaintiff asks the court to vacate the court's dismissal of plaintiffs complaint, to amend the complaint, for a stay of the lawsuit pending resolution of the divorce proceedings, or for a dismissal without prejudice. Defendant asks the court to strike plaintiffs affidavit and attachments filed January 28, 2019.
II. Standard of Review
A motion for reconsideration "shall not be filed unless required to bring to the court's attention an error, omission or new material that could not previously have been presented." M.R. Civ. P. 7(b)(5). "Rule 7(b)(5) is intended to deter disappointed litigants from seeking to reargue points that were or could have been presented to the court on the underlying motion." Shaw v. Shaw. 2003 ME 153, ¶ 8, 839 A.2d 714 (quotation marks omitted).
III. Discussion
A. Motion for Reconsideration and to Amend
Plaintiff requests to amend her complaint, to stay this lawsuit, or to dismiss the complaint without prejudice are brought before the court for the first time with this motion for reconsideration. These requests could have been presented in earlier submissions, including in her opposition to defendants' motion to dismiss.
Plaintiff argues she had no opportunity to respond to the court's consideration of documents. (Pl.'s Mot. Reconsideration 1.) That issue was raised by defendants in their motion to dismiss. (Defs.' Mot. Dismiss 2 & n.1.)
Plaintiff states that defendant Colucci is concealing marital assets in nonmarital assets. The two business entity defendants in this lawsuit are included in the divorce proceeding financial assets and neither is owned by third parties. (Defs.' Ex. Financial Stmt.)
B. Plaintiffs Affidavit in Support of her Objection to Motion to Dismiss. Plaintiffs Motion to Amend Complaint and Offer of Proof and Preservation of the Record; Defendants' Motion to Strike Affidavit and Attachments
Plaintiff's filings include her eighteen-page affidavit and 92 exhibits but no memorandum of law. Defendants filed a motion to strike the affidavit and attachments on February 6, 2019.
Plaintiff's objection to defendants' motion to dismiss was due October 3, 2018. The court's order on the motion to dismiss was filed on December 20, 2018.
Plaintiff's suggestion that the court may consider defendant's motion to dismiss as one for summary judgment comes too late. (Pl.'s Mot. 1.)
Plaintiff included a motion to amend the complaint in the motion for reconsideration filed January 2, 2019. Defendants filed their opposition on January 22, 2019. Plaintiff's reply "shall be strictly confined to replying to new matter raised on the opposing memorandum." M.R. Civ. P. 7(e). Although defendants argued that plaintiff "does not explain how she would amend the Complaint," fairness dictates that the explanation for amending the complaint should be filed with the original motion for reconsideration and to amend, along with a proposed amended complaint. See Bickford v. Onslow Mem'l Hosp. Found.. Inc.. 2004 ME 111, ¶ 7 n.1, 855 A.2d 1150 ("A party may not, however, raise new issues in a reply memorandum."); (Defs.' Opp'n Mot. Dismiss 2.) In plaintiff's filings on January 28, 2019, she provided no explanation or legal analysis supporting the motion to amend and no proposed amended complaint.
A Rule 12(f) motion to strike applies to pleadings and not to motions. M.R. Civ. P. 12(f). The court considers defendants' motion to strike as an objection to plaintiff's filings. (Defs.' Mot. Strike 1.) The court will not consider plaintiff's affidavit and attachments filed on January 28, 2019.
Within twenty days of the date of this order, defendants' counsel may file an affidavit of attorneys' fees incurred in the review of plaintiffs' January 28, 2019 filings and the preparation of defendants' motion to strike. Defendants' counsel will include the information necessary to allow the court to determine a reasonable attorney's fee award. See M.R. Prof. Conduct 1.5; Nadeau v. Nadeau. 2008 ME 147.¶ 59.957 A.2d 108: see also Coutin v. Young and Rubicam P.R., Inc.. 124 F.3d 331, 337 (1st Cir. 1997).
The entry is Plaintiff's Motion to Reconsider, to Amend Complaint, to Stay, and to Dismiss without Prejudice is DENIED.